Dispute involving university academic within jurisdiction of AIRC

Cases

Dispute involving university academic within jurisdiction of AIRC

The AIRC has found that it could determine whether or not there was a dispute pursuant to a certified agreement in relation to certain disciplinary actions taken by the Vice-Chancellor of a university, affecting an academic at the university.

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The AIRC has found that it could determine whether or not there was a dispute pursuant to a certified agreement in relation to certain disciplinary actions taken by the Vice-Chancellor of a university, affecting an academic at the university.

Background

On 30 May 2003 the National Tertiary Education Industry Union (NTEU) gave notice under clause 56 of the Southern Cross University Enterprise Bargaining Agreement 2000 of a dispute said to be over an alleged failure by Southern Cross University (SCU) to properly apply clause 35 of the agreement. 

Clause 35 concerns 'Disciplinary action for Misconduct'. Clause 56 sets out a dispute settling procedure.

The alleged dispute concerned action taken against 'Academic A' by the Vice-Chancellor of SCU. The action was the result of a complaint by 'Academic B' of sexual harassment by Academic A. That was denied by Academic A.

The action included a finding by the Vice-Chancellor that Academic A was guilty of serious misconduct (the harassment); the Vice-Chancellor censured him, issued a final warning and removed him from the position of Head of School. Academic A was also advised that his office would by physically relocated and his access to the School building was restricted. The Academic was notified of this by three letters.

It was the NTEU's submission that there was no reasonable basis for the Vice-Chancellor to read the Committee's report and then to conclude that there was sufficient weight of evidence to support a finding of serious misconduct.

The university argued that in relation to clause 35.7.2 it was the action of the Vice-Chancellor that was final. If the Vice-Chancellor did not follow required procedure there was access to the Federal Court.

Findings

The Commission was satisfied that the action taken by the Vice-Chancellor was disciplinary action for the purposes of clause 35.5.5.

It was argued that removal, as Head of School was not disciplinary action for the purposes of the agreement but that it was administrative action. That could not succeed: disciplinary action means any action by the Vice-Chancellor to discipline an employee for misconduct.

The correspondence of 26 May made it clear that all the action taken against Academic A was because of the misconduct, which the Vice-Chancellor accepted, had taken place. The specific action of removal as Head of School was an administrative action. It was justified (it was claimed) by the loss of confidence was the direct result of the misconduct. Without that misconduct there would have been no occasion for the action.

The Commission held that there was a dispute about the application of clause 35.5.5 that being a dispute as to whether the Vice-Chancellor could remove Academic A as Head of School in the absence of a recommendation from the Committee for such action pursuant to clause 35.2.3(g).

For the Commission to be able to entertain the dispute, the present matter had to fall within the qualification of an external tribunal. The Commission found that it did because the Commission's involvement is statutory. 

Section 170LW permits the Commission, if it approves, to accept the empowerment of the Commission to settle disputes over the application of the agreement. That is a form of jurisdiction albeit conferred by the parties to an agreement.

Therefore, the Commission held that 35.7.2 did not preclude the Commission from entertaining a dispute between parties to the agreement which, among other aspects, concerned a decision of the Vice-Chancellor pursuant to clause 35.

The Commission held that it could issue a summons if the hearing of this matter proceeded further.

The only question was whether the current proceedings were proceedings under the Act. The Commission believed so. The Commission was involved with the matter because of s170LW combined with the agreement of the parties. 

Because s170LW makes provision for the parties to empower the Commission to settle certain disputes there is a statutory basis to the Commission's involvement and, accordingly, the proceedings so initiated were proceedings before the Commission for the purpose of s111(2).

The matter has been relisted for mention to determine its future course.

See: Application by National Tertiary Education Industry Union re Southern Cross University Enterprise Bargaining Agreement 2000 - AIRC (Duncan SDP) - PR935798 - 6 August 2003.

 

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